Sarah Quinlan v Ethical Investment Services

[2021] FWC 4363

[2021] FWC 4363

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Sarah Quinlan
v
Ethical Investment Services
(C2021/3523)

DEPUTY PRESIDENT BOYCE SYDNEY, 22 JULY 2021

Application to deal with contraventions involving dismissal.

Background

[1] On 20 June 2021, Ms Sarah Quinlan (Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal. Ms McLeod commenced employment with Ethical Investment Services (Respondent) on 1 December 2020 and was dismissed on 28 May 2021.

[2] Section 366(1) of the Act provides that an application under s.365 must be made within 21 days after a dismissal takes effect, or within such further period as the Commission may allow.

[3] Given that the Applicant filed her application on 20 June 2021, it has been filed two days outside of the 21-day time limit. The Applicant should have filed her application by 20 May 2021 (to be within the 21-day time period).

[4] The matter was allocated to my Chambers on 2 July 2021. A Notice of Listing and Directions were issued to the parties on the same day, with the matter listed for Hearing to deal with the Out of Time Jurisdictional Objection on 5 August 2021.

[5] Orders [1] and [2] of the Directions issued 2 July 2021 read as follows:

“[1] By 4.00pm AEDT on Friday, 16 July 2021, the Applicant is to either:

(a) advise the Associate of Deputy President Boyce by email that the Applicant discontinues this matter; or

(b) file with the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents in support of the Applicant’s out of time application.

[2] Should the Applicant fail to comply with Order 1(a) or (b) above, then the matter may be dismissed without further notice to the Applicant.”

[6] Chambers received no correspondence from the Applicant in compliance with Order [1].

[7] On 19 July 2021, my Chambers received an email from the Respondent noting the Applicant’s non-compliance and requesting that the Commission summarily dismiss the application pursuant to both Order [2] of the Directions and s.587 of the Act.

[8] Following this correspondence from the Respondent, the Applicant was sent an email (Show Cause Email) noting that the Applicant had failed to comply with Directions, and issuing further Directions for the Applicant to:

“file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEDT Today, 19 July 2021.”

[9] Later that same day my Associate called the Applicant to follow up the Show Cause Email. During this telephone call, the Applicant indicated to my Associate that she had recently found new employment and had been too busy to prepare her submissions and evidence. My Associate advised the Applicant to reply to the Show Cause email so as to provide an explanation for her non-compliance for the Commission to consider.

[10] The Applicant then sent an email at 14:54pm AEDT that day to my Chambers which included the following relevant submissions:

“My apologies for the delay in getting back to you in relation to this matter - I have been focused on trying to regain employment and I successfully commenced a job on Monday last week which has had me totally distracted from this matter.

Now as we are in lockdown I am working from home and I am unable to address this matter by the deadline of 4pm this afternoon.

I do wish to proceed with this matter but I require more time as I was also unsuccessful in gaining assistance from the free legal aid I was directed to, so I need to prepare the evidence myself.

I understand if this cannot be deferred, but I ask that it is considered as my claim is valid and true and I do wish to proceed with the matter.”

[11] I provided the following response to the Applicant through my Associate:

“The Deputy President has considered your response and does not consider it to be a sufficient submission explaining your non-compliance with Directions.

However, as the Hearing is listed for Thursday, 5 August 2021, this allows for a further 48-hour extension for both parties without prejudicing the Respondent’s case.

Please find attached Amended Directions in this matter and note that the Applicant is now required to file and serve an outline of submissions, witness statements and any evidence by no later than 4:00pm AEDT Wednesday, 21 July 2021. No further extensions will be granted in this matter.”

[12] The Applicant did not reply to this correspondence. Further, the Applicant did not comply with the Amended Directions allowing her a 48-hour extension to the 2 weeks already provided to her to file and serve submissions or evidence to prosecute her case.

[13] On 22 July 2021 my Chambers received further correspondence from the Respondent noting the further non-compliance of the Applicant and requesting again that the Commission summarily dismiss the application pursuant to s.587 of the Act.

Legislative Provisions

[14] Section 587 of the Act provides as follows:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[15] In Rebecca Tomas v Symbian Health[2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587:

“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and do not limit Fair Work Australia's power to dismiss matters for other reasons.

[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.” 1

Consideration

[16] As the Applicant has made no attempt to comply with Directions to file and serve submissions and evidence prosecuting her case, and has provided insufficient reasoning to explain her non-compliance, I have decided to dismiss her application. In accordance with the principle of a fair go all round to both employers and employees, I find that the Applicant’s repeated non-compliance with Directions has now reached the level that the Respondent’s case is prejudiced. Further, in taking into account fairness, justice, equity and good conscience I find that the Applicant has been provided with repeated opportunities to prosecute her case, and/or contact the Commission to explain her non-compliance, including repeated warnings from my Chambers by email and telephone, but has failed to adequately comply.

[17] The Respondent has requested that the application be summarily dismissed, however has not made a formal application. Notwithstanding, I find, pursuant to s.587(3)(a), that the application should be dismissed for want of prosecution. An Order dismissing the application will be published with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR731965>

 1   See McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112, [9].